MASTER SERVICES AGREEMENT
This Master Services Agreement, including all addenda, exhibits and schedules hereto (the “Agreement”) shall govern the Order Form by and between Implied, Inc., a Delaware corporation with offices at 605 Market Street, STE 750, San Francisco, CA 94105 (“Implied”) and Customer (“Customer”, and together with Implied, the “parties,” and each, a “party”) to which this Agreement is attached. All capitalized terms used in this Agreement shall have the meanings stated in the Order Form, unless stated otherwise herein. In the event of a conflict between this Agreement and this Order Form, the terms and conditions of this Agreement shall govern unless explicitly stated otherwise.
This Agreement governs Implied’s provision of the Services and Customer’s access to and use of the Services. This Agreement contains general terms and conditions applicable to all such Services, and any Order Forms executed by the parties containing additional terms specific to the Services provided thereunder. For good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:
ACCEPTANCE OF TERMS
By an Individual. If Customer is entering into this Agreement on Customer’s own behalf, Customer hereby represents and warrants that Customer: (a) is of legal age to form a binding contract; (b) has the right, authority, and capacity to agree to and abide by this Agreement; and (c) is not a person barred from using the Services under the laws of any applicable jurisdiction.
On Behalf of a Company. If this signatory individual is entering into this Agreement on behalf of a company or other legal entity, Customer represents and warrants that such individual is authorized and lawfully able to bind such entity to this Agreement.
RIGHTS
Grant. Subject to and conditioned on Customer’s compliance with this Agreement, Implied hereby grants Customer a personal, non-exclusive, non-transferable, non-sublicensable, revocable license solely to use the Services only for Customer’s personal or internal business use. Customer’s access to and use of the Services must further comply in all material respects with all usage guidelines posted by Implied.
Trademarks. Customer may not use “Implied” or any of Implied’s names, brands, trademarks, service marks or logos that Implied makes available on the Services (“Marks”). Implied claims trademark protection over all such Marks, and Customer will not use the Marks except as expressly authorized herein. Customer will not remove or alter the Marks or any proprietary notices on the Services. The Marks may not be included in or as part of any registered corporate name, any other logo, or service or product name. Customer may not create any derivative works of the Marks or use the Marks in a manner that creates or reasonably implies an inaccurate sense of endorsement, sponsorship, or association with Implied. Customer will not otherwise use business names or logos in a manner that can mislead, confuse, or deceive any third party. All use of the Marks and all goodwill arising out of such use will inure to Implied’s benefit.
Responsibility for Data. All information, data (including information received or provided by Customer through Customer’s use of the Services), text, documents, and other materials accessible through the Services (“Data”) are the sole responsibility of the party from whom such information, data, text, documents, or materials originated. Customer acknowledges and agrees that: (i) the Services may provide access to or rely on Data from third parties (including without limitation, via Third Party Services (as defined below)), and such third parties, and not Implied, are entirely responsible for such Data; (ii) Customer, and not Implied, is entirely responsible for all Data (if any) that Customer or users authorized by Customer (“Authorized Users”), as applicable, submits, uploads, emails, transmits, or otherwise makes available through the Services or to Implied, including ensuring the accuracy, completeness, and integrity of the Data; and (iii) Customer is solely responsible for giving all required notices and obtaining all necessary consents before submitting Data through or to the Services or Implied. Customer further hereby represents and warrants that (A) Customer has all necessary rights and licenses to make available, submit, provide, and transfer all Data for Implied to exercise its rights granted and fulfill its obligations set forth herein, including as necessary for Implied to process any Data Customer submits to the Services in accordance with this
Agreement and (B) that Customer’s submission of Data to Implied will not violate this Agreement, any Implied usage guidelines or other policies, or any laws applicable to such Data, including without limitation intellectual property laws and any privacy or data protection laws governing any personal or sensitive information.
Authorized Users. If Customer is an enterprise customer, Authorized Users may access and use the Services on Customer’s behalf contingent upon such Authorized User’s compliance with the terms and conditions of this Agreement and the terms of use governing each Authorized User’s access to and use of the Services provided by Implied, which may be amended from time to time, at www.implied.com/terms (the “Terms of Service”), provided that: (i) Customer is responsible for ensuring that all Authorized Users agree in a legally enforceable manner to abide by and fully comply with the terms and conditions of this Agreement on the same basis as applicable to Customer; (ii) such use is only in connection with the Internal Purpose; (iii) such use does not represent or constitute an increase in the scope of the licenses provided hereunder (including an increase in the number of Authorized Users, if applicable); and (iv) Customer remains fully responsible and liable for any and all acts or omissions by such Authorized Users related to this Agreement and the Terms of Service. If Customer is an individual, Customer may access and use the Services on Customer’s behalf contingent upon Customer’s compliance with the terms and conditions of this Agreement and the Terms of Service.
RESTRICTIONS ON USE
Customer and Authorized Users may not use the Service for any illegal purpose, to facilitate the violation of any law or regulation, or in any manner inconsistent with this Agreement or the Terms of Service. Customer agrees to use the Service solely for its own Internal Purpose as defined in this Agreement, and not for resale, transfer, distribution, or use by or for the benefit of any unauthorized third party. Customer agrees not to use, transfer, distribute, or dispose of any information contained in the Service in any manner that could compete with the business of Implied or any of its suppliers.
Except as expressly permitted by Implied in writing, Customer and Authorized Users may not:
Copy, reproduce, recompile, decompile, disassemble, reverse engineer, distribute, publish, display, perform, modify, upload, create derivative works from, transmit, transfer, sell, license, upload, edit, post, frame, link, or in any way exploit any part of the Service.
Recirculate, redistribute or publish any analysis, presentation, or data included in the Service without Implied’s prior written consent.
Use the Service to construct a database of any kind or store any part of the Service in databases for access by Customer or any third party.
Use the Service in any way to improve the quality of any data sold or contributed to any third party.
Share logins, passwords, or other access credentials among users.
Disclose features, functionality, or any other aspects of the Service to other data vendors or competitors.
Input, distribute, upload, post, email, transmit or otherwise make available any content through the Service that is unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, libelous, invasive of another's privacy, or racially, ethnically or otherwise objectionable.
Introduce software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of the Service or any computer software, hardware, or telecommunications equipment.
Interfere with or disrupt the proper working of the Service, any activities conducted on or through the Service, or any servers or networks connected to the Service.
Attempt to gain unauthorized access to the Service, computer systems or networks connected to the Service, through hacking, password mining or any other means.
Use any "scraper," "robot," "bot," "spider," "data mining," "computer code," or any other automated device, program, tool, algorithm, process or methodology to access, acquire, copy, or monitor any portion of the Service without Implied prior express written consent.
Use any of the trademarks, trade names, service marks, copyrights, or logos of Implied in any manner which creates the impression that such items belong to or are associated with Customer or are used with Implied’s consent.
Customer acknowledges that it has no ownership rights in and to any of Implied’s intellectual property. Customer agrees to report any violation of these Restrictions on Use by others that it becomes aware of. Any use of the Service other than as specifically authorized herein is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws, including copyright and trademark laws and applicable communications regulations and statutes. Customer is solely responsible for all acts or omissions that occur under its account or password, including content transmitted, published or otherwise made available through the Service.
PRIVACY POLICY
In addition to this Agreement, the Implied Privacy Policy, available at www.implied.com/privacy (“Privacy Policy”) applies to how Implied may process information provided as part of the Services. Customer acknowledges and agrees that by accessing or using the Services, Implied may receive certain information about Customer and/or Authorized Users, as applicable, including personal data, as set forth in the Privacy Policy, and Implied may collect, use, store, process such personal data in accordance with such Privacy Policy.
PROPRIETARY RIGHTS
Data Storage and Usage. Implied retains and stores Customer-generated information, including but not limited to Customer inputs, interactions, queries, responses, and any resultant outputs or actions taken within the Services (collectively, "Customer-Generated Information"). Such retention is solely for the purposes of service provision, maintenance, improvement of user experience, and compliance with legal obligations. Upon receiving a verifiable request from the Customer, Implied shall remove or de-identify such Customer-Generated Information to the extent permissible by applicable law. Implied expressly disclaims any use of Customer- Generated Information for the training, development, or enhancement of any generative artificial intelligence models. Customer acknowledges and agrees that the technical processing and transmission of Customer-Generated Information associated with the Services may necessitate: (i) transmissions over various networks and across borders; and (ii) modifications to conform, connect, and adapt to technical requirements of networks or devices.
Ownership of the Services. The Services provided to Customer hereunder or available to Customer through the Services are licensed, not sold, and Implied retains and reserves all rights not expressly granted in this Agreement. Customer acknowledges and agrees that, as between Customer and Implied, Implied and its licensors owns all rights, title, and interest (including all intellectual property rights) in the Services and all data, content, and other materials within the Services. The Services are protected by U.S. and international copyright and other intellectual property laws and treaties. Implied reserves all rights not expressly granted to Customer in this Agreement.
Accounts. Customer is fully responsible for all activities that occur under Customer’s account. Customer agrees to notify Implied immediately of any unauthorized use of Customer’s or any Authorized User’s, as applicable, account or password or any other similar breach of security.
FEES AND PAYMENTS
Implied reserves the right at any time to charge fees for access to portions of the Service or the Service as a whole. This includes, but is not limited to Implied’s subscription tiers, which may allow for different levels of access and features based on the chosen plan. Additional information regarding the terms of the subscription tiers may be found under Subscription Terms.
If Implied requires a fee for portions of the Service or the Service as a whole, Customer will be required to register and create an account for each Authorized User. The decision to provide the information required to create an account is voluntary; however, if Customer elects not to provide such information, Customer and its Authorized Users will not be able to access certain content or features of the Service.
Customer shall pay all fees and charges incurred through its account and the accounts of its Authorized Users at the rates in effect for the billing period in which such fees and charges are incurred, including but not limited to charges for any products or services offered through the Service by Implied or by any other vendor or service provider. All fees and charges shall be billed to Customer, and Customer shall be solely responsible for their payment. Customer shall pay all applicable taxes relating to the use of the Service.
Certain portions of the Service or the Service as a whole may require a prepaid fee ("Prepaid Fee"), which may be modified from time to time in Implied’s sole discretion. The Prepaid Fee, and all taxes and other fees related thereto will be paid by Customer in advance. In no event will Customer receive any portions of the Service or the Service as a whole if a Prepaid Fee is required unless Implied’s receives all fees and charges payable by Customer, including the Prepaid Fee.
Customer agrees to provide Implied with accurate and complete billing information, including valid credit card information, name, address, and telephone number, and to update this information within 30 days of any change. Failure to provide accurate information may result in suspension or termination of Service.
Fees for the Service are based on the number of Authorized Users and the chosen subscription tier.
Customer may not share logins or access credentials among users to circumvent these fees. Any attempt to do so may result in additional charges or termination of the Service.
Implied may adjust fees and charges for the Service upon 30 days' written notice to Customer. If Customer does not agree to such changes, Customer's sole remedy is to terminate this Agreement within the 30- day notice period.
Unless otherwise stated, all fees are quoted in U.S. Dollars. Customer is responsible for paying all fees and applicable taxes associated with the Service in a timely manner with a valid payment method. If Customer's payment method fails or Customer's account is past due, Implied may collect fees owed using other collection mechanisms. This may include charging other payment methods on file with Implied or retaining collection agencies and legal counsel.
Implied may offer trial or promotional subscriptions to the Service. At the end of these trial or promotional periods, Implied will automatically begin charging the applicable fees for the Service unless Customer terminates its account before the end of the trial or promotional period.
Customer acknowledges that Implied may use a third-party payment processor to process payments.
Customer agrees to be bound by the terms and conditions of such third-party payment processor.
FEEDBACK
If Customer elects to provide or make available to Implied any suggestions, comments, ideas, improvements or other feedback relating to the Services (“Feedback”), Implied shall own and be free to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make, have made, assign, pledge, transfer or otherwise grant rights in Customer’s Feedback in any form and any medium (whether now known or later developed), without credit or compensation to Customer.
DEALINGS WITH THIRD PARTIES
Customer acknowledges that Implied uses OpenAI's and Anthropic, PBC's application programming interfaces ("APIs") to provide certain generative AI functionalities that inform the outputs of the Services. Implied maintains enterprise licenses with both OpenAI and Anthropic, and has obtained Zero Data Retention certificates from these providers.
Implied makes no representations as to the accuracy of any outputs of the Services and, given the probabilistic nature of machine learning, such outputs of the Services may be incorrect. Customer should use human review prior to using any such outputs.
INDEMNIFICATION
Customer shall indemnify and hold Implied and its affiliates, and each of their officers, directors, employees, agents, partners and licensors (collectively, “Implied Parties”) harmless from and against all losses, damages, costs, liabilities, and expenses, including reasonable attorneys’ fees, to extent resulting from or arising out of any third party claim, demand, or action due to (a) content Customer provides to Implied; (b) Customer’s violation of this Agreement, any law or regulation, or any rights (including intellectual property rights) of another party; or (c) Customer’s use of the Services, except as expressly permitted in this Agreement.
DISCLAIMER OF WARRANTIES
Disclaimer. CUSTOMER’S USE OF THE SERVICES IS AT CUSTOMER’S SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IMPLIED PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED OR ARISING FROM STATUTE, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON- INFRINGEMENT.
No Implied Representations and Warranties. IMPLIED PARTIES MAKE NO WARRANTY OR REPRESENTATION THAT: (i) THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS; (ii) ACCESS TO THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, VIRUS-FREE, OR ERROR-FREE; OR (iii) THE INFORMATION AND ANY RESULTS THAT MAY BE OBTAINED FROM ACCESS TO OR USE OF THE SERVICES WILL BE ACCURATE, RELIABLE, CURRENT, OR COMPLETE.
Non-Reliance. ALL CONTENT MADE AVAILABLE THROUGH THE SERVICES IS MADE AVAILABLE FOR INFORMATIONAL PURPOSES ONLY. CUSTOMER IS SOLELY RESPONSIBLE FOR CONFIRMING THE ACCURACY OF ALL CONTENT BEFORE TAKING OR OMITTING ANY ACTION. CUSTOMER SHOULD NOT RELY ON THE SERVCES AND CUSTOMER SHOULD NOT USE THE SERVICES FOR ADVICE OF ANY KIND. THE SERVICES AND ANY OUTPUTS THEREOF MAY CONTAIN MATERIAL INACCURACIES AND MAY NOT REFLECT CORRECT, CURRENT, OR COMPLETE INFORMATION. CUSTOMER MAY NOT RELY ON THE SERVICES FOR THE PROVISION OF ANY FINANCIAL ADVICE EITHER TO CUSTOMER OR TO ANY OF CUSTOMER’S CLIENTS, CUSTOMERS, OR CONSUMERS. ANY INFORMATION CUSTOMER PROVIDES TO CLIENTS, CUSTOMERS OR CONSUMERS MUST BE REVIEWED BY A QUALIFIED PROFESSIONAL IN THAT FIELD PRIOR TO DISSEMINATION AND CUSTOMER IS SOLELY RESPONSIBLE FOR THE ACCURACY AND APPROPRIATENESS OF THAT INFORMATION.
Disclaimer Limitation. THIS DISCLAIMER OF WARRANTY MAY NOT BE VALID IN SOME JURISDICTIONS AND CUSTOMER MAY HAVE WARRANTY RIGHTS UNDER LAW WHICH MAY NOT BE WAIVED OR DISCLAIMED. ANY SUCH WARRANTY EXTENDS ONLY FOR THIRTY (30) DAYS FROM THE EFFECTIVE DATE OF THIS AGREEMENT (UNLESS SUCH LAW PROVIDES OTHERWISE).
LIMITATION OF LIABILITY
Damage Waiver. IMPLIED PARTIES SHALL NOT BE LIABLE FOR ANY LOST PROFITS, LOSS OF DATA OR GOODWILL, OR COST OF COVER, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES ARISING FROM ANY TYPE OR MANNER OF COMMERCIAL,
BUSINESS, OR FINANCIAL LOSS, EVEN IF IMPLIED PARTIES HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE. EXCEPT AS SET FORTH IN SECTION 12(b), IN NO EVENT SHALL IMPLIED PARTIES’ AGGREGATE LIABILITY TO CUSTOMER FOR ANY AND ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT OR CUSTOMER’S ACCESS TO OR USE OF (OR INABILITY TO ACCESS OR USE) THE SERVICES OR CONTENT EXCEED THE AMOUNT PAID BY CUSTOMER TO IMPLIED FOR ACCESS TO THE SERVICES WITHIN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE APPLICABLE CLAIM(S) AROSE.
Liability Limit. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY REGARDLESS OF WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. INSOFAR AS APPLICABLE LAW PROHIBITS ANY LIMITATION ON LIABILITY HEREIN, THE PARTIES AGREE THAT SUCH LIMITATION WILL BE AUTOMATICALLY MODIFIED, BUT ONLY TO THE EXTENT SO AS TO MAKE THE LIMITATION COMPLIANT WITH APPLICABLE LAW. THE PARTIES AGREE THAT THE LIMITATIONS ON LIABILITIES SET FORTH HEREIN ARE AGREED ALLOCATIONS OF RISK AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
BETA SERVICES
Beta Services Disclaimer. AS FURTHER SET FORTH IN SECTION 10, ALL IMPLIED SERVICES LABELED ALPHA, BETA, PRE-RELEASE, TRIAL, PREVIEW OR SIMILARLY (“Beta Services”) ARE PROVIDED “AS IS”, “AS AVAILABLE”, WITH ALL FAULTS, AND CUSTOMER’S USE OF SUCH BETA SERVICES IS AT ITS SOLE RISK AND IMPLIED
DISCLAIMS ANY WARRANTY OR LIABILITY OBLIGATIONS OF ANY KIND. Implied has no obligations in connection with or in the course of providing the Beta Services. Any expectations and estimates regarding Beta Services are based on factors currently known and actual events or results could differ materially. Implied does not assume any obligation to update any Beta Services. In addition, any information about Implied’s roadmap outlines Implied’s general product direction and is subject to change at any time without notice. It is for informational purposes only and shall not be incorporated into this Agreement or any contract or other commitment. Implied undertakes no obligation either to develop the features or functionality provided in the Beta Services, or to include any such feature or functionality in a future release of the Services. Customer expressly acknowledges that the Beta Services have not been fully tested and may contain defects or deficiencies which may not be corrected by Implied. The Beta Services may undergo significant changes prior to release of the corresponding generally available final version.
Beta Services Liability Waiver. NOTWITHSTANDING SECTION 10(d) WHERE LEGAL LIABILITY CANNOT BE EXCLUDED BUT MAY BE LIMITED, IMPLIED’S LIABILITY AND THAT OF ITS SUPPLIERS AND AUTHORIZED PARTNERS SHALL BE LIMITED TO THE SUM OF ONE HUNDRED DOLLARS ($100) FOR ANY AND ALL CLAIMS ARISING FROM OR RELATING TO THE BETA SERVICES.
SUSPENSION AND TERMINATION
Termination for Cause. This Agreement and the Order Form may be terminated as follows: (i) immediately if the other party materially breaches any of the terms or conditions of this Agreement or the Order Form, or, to the extent such breach is curable, upon thirty (30) days’ notice if the breaching party fails to cure such breach within such time period; or (ii) by either party in the event the other party becomes insolvent or bankrupt, becomes the subject of any proceedings under bankruptcy, insolvency or debtor’s relief law, has a receiver or manager appointed, makes an assignment for the benefit of creditors, or takes the benefit of any applicable law or statute in force for the winding up or liquidation of such party’s business.
Termination without Cause. During the Trial Period, either party shall be able to terminate this Agreement and the Order Form immediately upon providing notice to the other party.
Suspension. Implied reserves the right to suspend Customer’s or any Authorized User’s access to the Services in the event (i) Customer or Authorized Users use the Services in violation of the terms and conditions of this Agreement or the Terms of Service that disrupts or is reasonably likely to disrupt the availability of the Services to other users; or (ii) Customer fails to make payment within five (5) business days of such payment becoming due. If access is suspended pursuant to clause (i), Implied will make commercially reasonable efforts to
limit suspension to the minimum extent and duration necessary to eliminate the disruption. Implied further reserves the right to suspend or revoke access to the Services by any Authorized User who violates any Policy.
Right to Modify Services. Implied reserves the right at any time to modify, suspend, or discontinue the Services (or any portion thereof) with or without notice, and Implied shall not be liable to Customer or any third party for any such modification or discontinuance;
Effect of Termination; Survival. Upon termination of this Agreement for any reason: (i) Implied, in its sole discretion, may remove and discard Customer’s content and information; (ii) Customer will immediately cease Customer’s use of the Services; and (iii) any provision that, by its terms, is intended to survive the expiration or termination of this Agreement shall survive such expiration or termination. Further, Customer agrees that that Implied shall not be liable to Customer or any third party for any termination of Customer’s account or access to the Services.
GOVERNING LAW
This Agreement shall be governed by and construed and enforced in accordance with the United States Federal Arbitration Act, other applicable federal laws, and the laws of the State of Delaware, without regard to conflict of laws principles. The parties agree that neither the United Nations Convention on Contracts for the International Sale of Goods, nor the Uniform Computer Information Transaction Act (UCITA) shall apply to this Agreement, regardless of the states in which the parties do business or are incorporated.
BINDING ARBITRATION AND CLASS ACTION WAIVER
Binding Arbitration. ALL CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT SHALL BE RESOLVED BY FINAL AND BINDING ARBITRATION RATHER THAN IN COURT, EXCEPT THAT CUSTOMER MAY ASSERT CLAIMS IN SMALL CLAIMS COURT (DEFINED FOR THE PURPOSES OF THIS AGREEMENT AS A COURT OF LIMITED JURISDICTION THAT MAY ONLY HEAR CLAIMS NOT EXCEEDING $5,000) IF CUSTOMER’S CLAIMS ARE WITHIN THE COURT’S JURISDICTION. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED.
Arbitration Procedure. The arbitration shall be conducted by the American Arbitration Association (AAA) under its then-applicable Commercial Arbitration Rules or, as appropriate, its Consumer Arbitration Rules. The AAA’s rules are available at http://www.adr.org/. Payment of all filing, administration and arbitrator fees shall be governed by the AAA’s rules. The arbitration shall be conducted in the English language by a single independent and neutral arbitrator. For any hearing conducted in person as part of the arbitration, Customer agrees that such hearing shall be conducted in New Castle County, Delaware, or if the Consumer Arbitration Rules apply, another location reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances, as determined by the arbitrator. The decision of the arbitrator shall be final and binding. Judgment on the arbitral award may be entered in any court of competent jurisdiction.
Class Action Waiver. WE EACH AGREE THAT ALL CLAIMS SHALL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION OR OTHER SIMILAR PROCESS (INCLUDING ARBITRATION). IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, WE EACH WAIVE ANY RIGHT TO A JURY TRIAL AND AGREE THAT SUCH CLAIM SHALL BE BROUGHT ONLY IN A COURT OF COMPETENT JURISDICTION IN NEW CASTLE COUNTY, DELAWARE. CUSTOMER HEREBY SUBMIT TO THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS AND WAIVE ANY OBJECTION ON THE GROUNDS OF VENUE, FORUM NON-CONVENIENS OR ANY SIMILAR GROUNDS WITH RESPECT TO ANY SUCH CLAIM.
Injunctive Relief. Notwithstanding anything to the contrary, Customer and Implied may seek injunctive relief and any other equitable remedies from any court of competent jurisdiction, whether in aid of, pending, or independently of the resolution of any dispute pursuant to the arbitration procedures set forth in this Section 15.
Effect of Changes. If Implied implements any material change to this Section 15, such change shall not apply to any Claim for which Customer provided written notice to Implied before the implementation of the change.
LEGAL COMPLIANCE
Customer represents and warrants that Customer will comply with all applicable foreign, federal, state, and local laws, rules and regulations, including without limitation, U.S. export laws and import and use laws of the country where Licensed Material is delivered or used and Customer are not: (a) located in a country that is subject to a U.S. Government embargo, or designated by the U.S. Government as a “terrorist supporting” country; and (b) listed on any U.S. Government list of prohibited or restricted parties, including the Specially Designated Nationals List.
U.S. GOVERNMENT ENTITIES
This section applies to access to or use of the Services by a branch or agency of the United States Government. The Services includes “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and qualifies as “commercial items” as defined in 48
C.F.R. 2.101. Such items are provided to the United States Government: (a) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (b) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 and 227.7202-3. The United States Government shall acquire only those rights set forth in this Agreement with respect to the such items, and any access to or use of the Services by the United States Government constitutes: (i) agreement by the United States Government that that such items are “commercial computer software” and “commercial computer software documentation” as defined in this section; and (ii) acceptance of the rights and obligations herein.
GENERAL PROVISIONS
This Agreement constitutes the entire agreement between Customer and Implied concerning Customer’s access to and use of the Services and supersedes all prior and contemporaneous oral or written negotiations and agreements between Customer and Implied with respect to such subject matter. This Agreement may not be amended except in a writing executed by Customer and an authorized representative of Implied. Except as otherwise expressly provided in this Agreement, there shall be no third-party beneficiaries to this Agreement. For the purposes of this Agreement, the words “such as,” “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation.” Customer may not assign or delegate any right or obligation under this Agreement without the prior written consent of Implied. The failure of Implied to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is held to be invalid or unenforceable under applicable law, then such provision shall be construed, limited, modified or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability, without in any way affecting the remaining parts of this Agreement. Any prevention of or delay in performance by Implied hereunder due to labor disputes, acts of god, failure of the Internet, governmental restrictions, enemy or hostile governmental action, fire or other casualty or other causes beyond its reasonable control shall excuse the performance of its obligations for a period equal to the duration of any such prevention or delay.